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JOHNSON v. SCULLY

May 22, 1997

JERMAINE JOHNSON, Petitioner, against CHARLES J. SCULLY, Warden, Greenhaven Correctional Facility, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Jed S. Rakoff, United States District Judge:

 Pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, I recommend that the Court summarily dismiss petitioner Jermaine Johnson's habeas corpus petition on the ground that he is not entitled to relief, since his petition is a "mixed" petition.

 FACTS

 Petitioner Jermaine Johnson's habeas petition is dated March 12, 1997 and was received by the Court's Pro Se Office on April 10, 1997. (See Petition.) The Petition indicates that in 1993, Johnson was convicted of murder and lesser offenses and sentenced to 25 years to life imprisonment. (Petition PP 1-4.) The Appellate Division, First Department affirmed his conviction on October 12, 1995. People v. Johnson, 220 A.D.2d 277, 632 N.Y.S.2d 107 (1st Dep't 1995). (See Petition P 9.) The Court of Appeals denied leave to appeal on May 6, 1996. See People v. Johnson, 88 N.Y.2d 880, 668 N.E.2d 426, 645 N.Y.S.2d 445 (1996). (See Petition P 9.)

 Johnson's federal habeas petition raises four claims. (Petition P 12.) Johnson's first habeas claim is that the prosecution withheld evidence (an autopsy tape). (Petition P 12(A).) Johnson's second claim is that the evidence at trial was insufficient to support a finding of guilt beyond a reasonable doubt. (Petition P 12(B).) Johnson's third habeas claim is ineffective assistance of trial counsel. (Petition P 12(C).) Finally, Johnson's fourth habeas claim is that the reasonable doubt jury instructions were constitutionally inadequate. (Petition P 12(D).)

 Johnson's petition concedes that his third habeas ground -- ineffective assistance of trial counsel -- was not presented to the state courts: "Ground three was not presented in any other court, due to your petitioner's lack of knowledge of the law, which is no excuse yet made part of the record." (Petition P 13.)

 ANALYSIS

 JOHNSON'S PETITION SHOULD BE DENIED WITHOUT PREJUDICE AS A MIXED PETITION

 Johnson's Petition concedes that his third habeas ground -- ineffective assistance of trial counsel -- has not been exhausted in state court. (Petition P 13.) As such, his petition is a "mixed" one and should be dismissed without prejudice. *fn1"

 A. Prior to the Antiterrorism and Effective Death Penalty Act, the Court Was Required to Dismiss "Mixed" Petitions Containing Both Exhausted and Unexhausted Claims

 This section discusses the law as to "mixed" petitions in effect prior to the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA").

 A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b). *fn2" While pre-amendment Section 2254 did not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of ...


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